Agenda of Development Committee

Minutes of the Development Committee

Meeting Date: Tuesday, 9 May 2017

Location: Council Chambers, City Administrative Building, Bridge Road, Nowra

Time: 5:00pm

The following members were present:

Clr Patricia White - Chairperson

Clr Joanna Gash

Clr John Wells

Clr Amanda Findley

Clr John Levett – arrived at the meeting at 5.02 pm

Clr Nina Cheyne

Clr Annette Alldrick

Clr Kaye Gartner

Clr Andrew Guile

Clr Mitchell Pakes

Clr Greg Watson

Clr Mark Kitchener

Clr Bob Proudfoot

Mr Russ Pigg - General Manager

Apologies / Leave of Absence

Nil

Confirmation of the Minutes

RESOLVED (Clr Wells / Clr Gartner) MIN17.373

That the Minutes of the Development Committee held on Tuesday 11 April 2017 be confirmed.

Wells/Gartner

CARRIED

Declarations of Interest

Clr Watson – DE17.30 – Planning Proposal and Development Control Plan - Falls Creek / Woollamia Deferred Areas – pecuniary interest declaration – as he owns a property at 23 Seasongood Road, Woollamia and the decision of the Committee may impact on the value of his property – will leave the room and will not take part in discussion or vote.

Deputations and Presentations

Mr Daniel Thompson addressed the Committee in relation to DE17.36 Moss Vale Road South Urban Release Area - Detailed Supporting Plans

Clr Levett joined the meeting at 5.02pm

Reports

Procedural Motion - Bring Item Forward

Motion (Clr Gartner / Clr Guile)

That the matter of item DE17.36 Moss Vale Road South Urban Release Area - Detailed Supporting Plans be brought forward for consideration.

DE17.36 Moss Vale Road South Urban Release Area - Detailed Supporting Plans	HPERM Ref: D17/106420
Note: A deputation on this matter was provided earlier in the meeting.
Recommendation (Item to be determined under delegated authority) That Council: 1. Support the proposed insertion of a clause in Shoalhaven Local Environmental Plan 2014 that allows for an exception to the minimum lot size in the Moss Vale Road South Urban Release Area and prepare a Planning Proposal to submit to the NSW Department of Planning and Environment for Gateway determination. 2. Give in principle support for the current Indicative Layout Plan for the Urban Release Area, which will be utilised in the proposed Development Control Plan Chapter. 3. Commence the preparation of a Development Control Plan Chapter and Contributions Plan for the Moss Vale South Urban Release Area as required by Part 6 of Shoalhaven LEP2014. 4. If necessary, receive a further report following receipt of the Gateway determination.
RESOLVED (Clr Gartner / Clr Watson) MIN17.374 That Council: 1. Support the proposed insertion of a clause in Shoalhaven Local Environmental Plan 2014 that allows for an exception to the minimum lot size in the Moss Vale Road South Urban Release Area and prepare a Planning Proposal to submit to the NSW Department of Planning and Environment for Gateway determination. 2. Give in principle support for the current Indicative Layout Plan for the Urban Release Area, which will be utilised in the proposed Development Control Plan Chapter. 3. Commence the preparation of a Development Control Plan Chapter and Contributions Plan for the Moss Vale South Urban Release Area as required by Part 6 of Shoalhaven LEP2014. 4. If necessary, receive a further report following receipt of the Gateway determination. For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg Against: Nil CARRIED

DE17.29 Draft Planning Agreement - Enterprise Avenue, South Nowra - Proposed Public Exhibition

HPERM Ref: D17/56925

Recommendation (Item to be determined under delegated authority)

That Council:

1. Support the requested changes to the draft Planning Agreement requested by Palmira Holdings Pty Ltd.

2. Publicly exhibit the draft Planning Agreement (Attachment 1) for a minimum period of 28 days as required by legislation.

3. Identify a budget to compensate for part of the design and construction of Enterprise Avenue.

4. Commence the process to acquire part of Lot 2 DP 1170503 to enable to construction of Enterprise Avenue.

5. Council staff report back to the Development Committee after the public exhibition period.

RESOLVED (Clr Wells / Clr Gash) MIN17.375

That Council:

1. Support the requested changes to the draft Planning Agreement requested by Palmira Holdings Pty Ltd.

2. Publicly exhibit the draft Planning Agreement (Attachment 1) for a minimum period of 28 days as required by legislation.

3. Identify a budget to compensate for part of the design and construction of Enterprise Avenue.

4. Commence the process to acquire part of Lot 2 DP 1170503 to enable to construction of Enterprise Avenue.

5. Staff report back to the Development Committee after the public exhibition period.

For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE17.30 Planning Proposal and Development Control Plan - Falls Creek / Woollamia Deferred Areas

HPERM Ref: D17/85943

Clr Watson – pecuniary interest declaration – left the room and did not take part in discussion or vote - owns a property at 23 Seasongood Road, Woollamia and the decision of the Committee may impact on the value of his property.

Recommendation (Item to be determined under delegated authority)

That:

1. Council endorse the updated Falls Creek / Woollamia Deferred Areas Planning Proposal and draft Development Control Plan Chapter N16 for public exhibition and proceed to exhibit for a minimum period of 28 days.

2. Council staff be authorised to make any necessary minor changes to improve readability/usability of the draft Development Control Plan Chapter prior to exhibition.

3. Report the outcomes of the exhibition period back to the Development Committee for final consideration.

RESOLVED (Clr Gartner / Clr Guile) MIN17.376

That:

2. Council staff be authorised to make any necessary minor changes to improve readability/usability of the draft Development Control Plan Chapter prior to exhibition.

3. Report the outcomes of the exhibition period back to the Development Committee for final consideration.

For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Kitchener, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE17.31 Housekeeping Amendment 2016 Planning Proposal (PP022) - Minor Mapping & Instrument Changes	HPERM Ref: D17/91489
Clr Watson returned to meeting 5.24 pm
Recommendation (Item to be determined under delegated authority) Council submit the Housekeeping Amendment 2016 Housekeeping Planning Proposal (PP022) to the NSW Department of Planning and Environment for initial Gateway determination.
RESOLVED (Clr Wells / Clr Levett) MIN17.377 That Council submit the Housekeeping Amendment 2016 Housekeeping Planning Proposal (PP022) to the NSW Department of Planning and Environment for initial Gateway determination. For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg Against: Nil CARRIED

DE17.32 Strategic Planning Policies - Review

HPERM Ref: D17/15895

Recommendation (Item to be determined under delegated authority)

That Council:

1. Reaffirm the following policies;

a. POL 12/326 Contaminated Lands Policy

b. POL 15/54 Nowra CBD Banner Policy

2. Reaffirm the following policies and amend these policies through future reviews;

a. POL 12/217 Development - Coastal Areas - Planning & Development

b. POL 12/239 Rates - Small Lot Rural Subdivisions - Dealing with Unpaid Rates & Charges

c. POL 12/243 Voluntary Planning Agreements

d. POL 12/308 Payment of Development Contributions and Section 64 Headworks Charges by Deferment or Instalments ( under special circumstances )

e. POL 16/258 Nowra CBD Contributions Discount Subsidy Policy

f. POL 14/48 Road Closure - Events - Junction Court

RESOLVED (Clr Findley / Clr Gartner) MIN17.378

That Council:

1. Reaffirm the following policies;

a. POL 12/326 Contaminated Lands Policy

b. POL 15/54 Nowra CBD Banner Policy

2. Reaffirm the following policies and amend these policies through future reviews;

a. POL 12/217 Development - Coastal Areas - Planning & Development

b. POL 12/239 Rates - Small Lot Rural Subdivisions - Dealing with Unpaid Rates & Charges

c. POL 12/243 Voluntary Planning Agreements

d. POL 12/308 Payment of Development Contributions and Section 64 Headworks Charges by Deferment or Instalments ( under special circumstances )

e. POL 16/258 Nowra CBD Contributions Discount Subsidy Policy

f. POL 14/48 Road Closure - Events - Junction Court

For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE17.33 Development Application DS16/1079 – Proposed Building Envelope - Variation to Restrictions as to User - Lot 13 DP829169 Moss Vale Road Kangaroo Valley

HPERM Ref: D17/79579

Recommendation

That Council:

1. Support the request for a relocated building envelope, based on the information as submitted, subject to a restriction being negotiated with the applicant to limit the scale of any future dwelling in the envelope; and

2. Return the application for staff to determine under delegation.

RESOLVED (Clr Guile / Clr Gartner) MIN17.379

That Council:

2. Return the application for staff to determine under delegation.

For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE17.34 Planning Proposal (PP012) - Review of Flood Controls in Shoalhaven LEP 2014

HPERM Ref: D17/87727

Recommendation (Item to be determined under delegated authority)

That the Committee:

1. Endorse the Planning Proposal (PP012) – Review of Flood Controls to amend Shoalhaven Local Environmental Plan (LEP) 2014 for lodgement with the NSW Department of Planning & Environment (DP&E) to request Gateway determination.

2. Amend Chapter G9: Development on Flood Prone Land and Chapter G10: Caravan Parks in Flood Prone Areas in Shoalhaven Development Control Plan 2014 as part of a future review of these chapters to ensure consistency with any proposed changes to Shoalhaven LEP 2014.

3. Support the preparation of an online Flood Planning map to provide publicly accessible information and interactive display of adopted Flood Study mapping and historic flooding information.

RESOLVED (Clr Findley / Clr Gartner) MIN17.380

That Council:

3. Support the preparation of an online Flood Planning map to provide publicly accessible information and interactive display of adopted Flood Study mapping and historic flooding information.

For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE17.35 Shoalhaven Development Control Plan 2014 - Endorsement

HPERM Ref: D17/116953

Recommendation (Item to be determined under delegated authority)

That Council;

1. Continue with the current method for amendments to Shoalhaven Development Control Plan 2014 in line with the Strategic Planning Work Program and obligations under the Environmental Planning and Assessment Act 1979.

2. Exclude Shoalhaven Development Control Plan 2014 from the four year policy review cycle.

RESOLVED (Clr Guile / Clr Alldrick) MIN17.381

That Council;

2. Exclude Shoalhaven Development Control Plan 2014 from the four year policy review.

For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

DE17.36 Moss Vale Road South Urban Release Area - Detailed Supporting Plans

HPERM Ref: D17/106420

Item dealt with earlier/later in the meeting see MIN17.374

DE17.37 Outcomes - Shoalhaven Local Heritage Assistance Fund 2016/2017

HPERM Ref: D17/113965

Recommendation (Item to be determined under delegated authority)

1. Receive the Summary Project Report (Attachment 1), which details the outcomes of the Shoalhaven Local Heritage Assistance Fund Program 2016-2017, for information.

2. Reaffirm, in the interim, the Shoalhaven Heritage Strategy 2014-2017 and extend it with minor wording adjustments and updates (as per Attachment 3) to cover 2017-2020.

3. Proceed with a broader review of the extended Shoalhaven Heritage Strategy 2017-2020 and separately report this to Council for endorsement when compete.

RESOLVED (Clr Wells / Clr Findley) MIN17.382

That Council

1. Receive the Summary Project Report (Attachment 1), which details the outcomes of the Shoalhaven Local Heritage Assistance Fund Program 2016-2017, for information.

2. Reaffirm, in the interim, the Shoalhaven Heritage Strategy 2014-2017 and extend it with minor wording adjustments and updates (as per Attachment 3) to cover 2017-2020.

3. Proceed with a broader review of the extended Shoalhaven Heritage Strategy 2017-2020 and separately report this to Council for endorsement when compete.

For: Clr White, Clr Gash, Clr Wells, Clr Findley, Clr Levett, Clr Cheyne, Clr Alldrick, Clr Gartner, Clr Guile, Clr Pakes, Clr Watson, Clr Kitchener, Clr Proudfoot and Russ Pigg

Against: Nil

CARRIED

There being no further business, the meeting concluded, the time being 5.43 pm.

Clr White

CHAIRPERSON

Development Committee – Monday 05 June 2017

Page 8

DE17.38 Section 138 Approvals, Roads Act 1993

HPERM Ref: D16/374324

Group: Planning Environment & Development Group

Section: Development Services

Purpose / Summary

Works within the road reserve require a formal approval under the Roads Act 1993. This includes the construction of driveways and this includes all new dwelling applications, Council has inconsistently applied the need for these approvals. For example, it has required approvals for multi dwelling, commercial and industrial development but has not always pursued applications for works in the road reserve for single dwellings or dual occupancies. This has caused some difficult with respect to the standard or works in the road reserve (detailed later in this report). Section 138 of the Roads Act 1993 does not distinguish between types of development.

The historic reason for this inconsistency is based on both resource implications for Council and concern with respect to potential costs for home owners. Accordingly, a ‘relaxed’ approach has been taken with respect to this requirement under the Roads Act 1993.

Over the passage of time, noting also the making of a State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP), home owners have been seeking or been made aware of their obligations under the Roads Act 1993 The Codes SEPP in effect, reinforces the provisions of the Roads Act 1993.

Further, the inconsistent approach with respect to approvals for works in the road reserve is a source of frustration to some developers who are seeking a consistent application of ‘rules’ and fees for the work. Developers have expressed some frustration that people building houses do not always seek approval whereas approvals are required, sought and typically obtained for other types of development such as dual occupancies and multi dwelling housing developments. Developers of subdivisions are also voicing concerns regarding the difficulty they are having with respect to integrating footpaths with non-compliant residential driveways. Refer to Photo 1.

The absence of approvals for future assets in the road reserve may also be an issue regarding liability for Council. This report highlights Council’s statutory obligations and recommends to Council that staff apply section 138 of the Roads Act 1993 for works in the road reserve consistently for all development types, where approval is required under the Act.

Recommendation (Item to be determined under delegated authority)

That;

1. Section 138 of the Roads Act 1993 be applied consistently to all development where approval is required in the road reserve.

2. A clear modern driveway profile/gradients and associated fact sheet be produced to assist home builders to ascertain suitable garage floor levels and driveway gradients to facilitate integration with Council’s road reserve.

Options

1. Continue with the current situation (not recommended).

Implications: This would result in the following:

· Difficulty integrating public footpaths with non- compliant driveways. This results in a ‘patchwork’ of finishes and undulating footpaths.

Photo 1 – Twin Waters Estate

Integrating pedestrian footpaths with driveways can be problematic.

Note the undulating footpath.

· Driveways being constructed at gradients which are too steep for vehicles to negotiate. This could result in vehicles scraping the driveway as well as stormwater drainage issues as identified in landslips following the August 2015 East Coast Low;

· Driveways which have footpath crossings with liability issues – e.g. trip hazards.

· Unsatisfactory standards of construction with concrete cracking, inappropriate and slippery finishes;

· Work being done by ‘anyone’ - lack of regulation and therefore quality control and compliance issues;

· Inconsistency - other forms of development (such as dual occupancy, commercial and industrial) require approval;

· Inconsistency - private certifiers are required to obtain approval under the provisions of the exempt and complying developments codes [State Environmental Planning Policy Exempt and Complying Development Codes (2008)] – complying development certificates (CDCs) for dwellings by way of example;

· Lack of legislative compliance and inability to pursue enforcement where driveways are problematic.

2. Require works within Council’s road reserve to obtain an approval under section 138 of the Roads Act 1993 (recommended).

Implications:

· This would help to ensure all driveway/footpath works are completed in a safe, consistent and standardised manner to minimise public liability issues and promote better asset longevity;

· Regulating the process and applying a set of standards consistently, would bring Council’s practice into line with other Councils;

· Whilst there may be an additional process and cost involved, the advantage is that Council’s assets would be better protected and managed with construction in the road reserve appropriately supervised;

· A more formalised approach has resource implications with respect to inspections and approvals regime particularly due to the geographical size of the Shoalhaven. Accordingly, a process needs to be designed and managed having regard to these factors;

· Whilst people building new homes would be the subject of an additional fee, the cost is comparatively insignificant to the overall investment by the home owner/developer;

· Many homes are being built by project home builders who operate across local government boundaries, many builders should be familiar with requirements under the Roads Act 1993.

Background

What is section 138 of the Roads Act 1993?

Section 138 requires:

138 Works and structures

(1) A person must not:

(a) erect a structure or carry out a work in, on or over a public road, or

(b) dig up or disturb the surface of a public road, or

(c) remove or interfere with a structure, work or tree on a public road, or

(d) pump water into a public road from any land adjoining the road, or

(e) connect a road (whether public or private) to a classified road,

otherwise than with the consent of the appropriate roads authority.

Maximum penalty: 10 penalty units.

(2) A consent may not be given with respect to a classified road except with the concurrence of RMS.

(3) If the applicant is a public authority, the roads authority and, in the case of a classified road, RMS must consult with the applicant before deciding whether or not to grant consent or concurrence.

(4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person.

(5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section.

Under section 138 of the Roads Act 1993, Council is the nominated consent authority for all works within the road reserve on local roads in the local government area.

History

On 20 January 2004, the Works and Finance Committee considered a report on a proposed “Driveway Policy”. That report identified a need for Council to review the policy on the construction of driveways (to residential properties) within the road reserve. At the time, a City wide review of the then current practices resulted in several issues being identified, including but not limited to unsafe steep driveways, inappropriate and dangerous finishes and inadequate consideration of future footpaths exposing Council to additional costs in providing infrastructure.

The report also highlighted it was proposed to develop a policy to address the issue. It also acknowledged a resource implication and that any policy should be exhibited. The report foreshadowed commencement in July 2004.

On 19 March 2004, a report to the Executive Committee commented there would be a need to have a dedicated resource. The Committee resolved that the:

“new position of Restorations Officer be further considered by Council in conjunction with the 2004/05 Budget considerations.”

No additional resources were provided in the 2004/5 budget. A draft policy was prepared but was never finalised. It is also important to note that under the Codes SEPP, private certifiers must obtain approval for works in the road reserve.

In short, some home builders and owners are seeking approval, some are not and Council has not actively pursued applications or sought compliance with Council standards. The application of s138 of the Roads Act 1993 has been inconsistent.

To deal with this, Council has been imposing a condition on approvals requiring compliance with Council’s standards for driveways. However, it is considered timely and prudent to ensure compliance with the provisions of the Roads Act 1993 for the reasons outlined earlier.

In the State’s guide to complying development, the following comment is made:

“If you require any works to be done on the street or footpath, such as construction of a new driveway crossing, or alterations to the footpath pavement you will need to obtain separate approval from council under s138 of the Roads Act 1993, prior to the issue of a complying development certificate.”

Subdivisions

When a subdivision is approved, certain street types warrant the construction of a footpath. The construction of a footpath is required typically prior to issue of a Subdivision Certificate. The Subdivision Certificate is the certification which enables the subdivision to be submitted to Land and Property Information to enable the creation of land title.

Council however has been agreeable to ‘bonding’ the works to enable completion at a later date. The reason for this is that builders tend to park on footpaths, have deliveries and multiple contractors attend the site and regrettably cause damage to the footpath/road reserve.

Whilst this approach (bonding) may help to avoid damage to paths, home builders/owners tend to construct driveways with little regard to the future levels required for a footpath or the existing level of the footpath area. If the pedestrian paths were in place however, this would assist in predetermining driveway gradients and garage floor levels to some extent. It is noted that not all streets will have footpaths especially if minor roads such as cul-de-sacs.

Photo 2 – Typical situation in a new estate.

Photo 3 – damaged footpath, Ulladulla.

What do other Council’s do?

Kiama, Shellharbour, Wollongong and Wingecarribee Councils require formal applications for works in the road reserve and have documented standards for construction. Kiama, Shellharbour and Wollongong also have nominated approved contractors to do the work. At one point, Shellharbour City had a specific officer dedicated to the task to ensure that all new driveways were constructed to required standards.

Kiama Council has a comprehensive Driveway and Footpath Works Procedure Manual 2016 - 2017, (recently updated) and a strict process to manage works in the road reserve. Refer to the Council web page and information on driveways including access to the manual via the following link:

http://www.kiama.nsw.gov.au/residents/roads---traffic/driveways-and-footpaths

With respect to subdivision works, Shellharbour Council has required street trees to be planted prior to Subdivision Certificate and for any development thereafter, applicants pay a significant bond to protect the tree which is returned 6 months after project completion. Footpaths are generally constructed when the estate is mostly completed. A footpath masterplan dictates where the paths are to be built.

Driveway specifications and profiles

It is also important to note that Council’s relies on a 1994 drawing to inform applicants and it is timely that this be revised to show a clear long section with relevant grades. This could be easily modelled/based on any number of Councils with reference to relevant Australian Standards, which have standard specifications which have found to be used for considerable periods of time and found to be satisfactory.

Figure 1 – Council’s 1994 Drawing

Figure 2 – Examples of Typical Driveway Profiles used by Neighbouring Councils

Community Engagement

The development industry groups have been consulted with respect to s138 approvals and there is generally support for regularising the process.

The implementation of existing legislation requiring an approval does not require notification. In the event however that a formal policy or procedure is ultimately developed along the lines of Kiama Council by way of example, it would be prudent to undertake a consultation process particularly if any policy is of a nature warranting formal consideration and adoption by Council.

Policy Implications

It is also important to note that Council’s Development Application form, offers the applicant the ability to apply for a s138 approval concurrent with their development. By ticking this box on the form, there is the ability to charge the fee, assess the matter and issue an approval. Alternatively, a separate application can be made.

For single dwellings, it is recommended that the building surveyors undertaking inspections for the dwellings, do the inspections for the driveways. At most, this would be prior to the driveway being constructed and upon completion of the work which could also be concurrent to the final inspection for the dwelling. With respect to all other development types, the status quo would be maintained which is that the Subdivision Officer inspects the sites/works.

The Subdivision Officer effectively ‘covers’ and inspects the entire local government area and is responsible for subdivision works as well as driveways and it is simply not possible for that Council officer to inspect from the north to the south of the local government area for all works. In this regard, noting the resource implication, the role must be shared and it appears logical that this role could be given the building surveyors who are already inspecting the site for building works. It is practical, that the Surveyors inspect the driveway, being ancillary to the residential development of the land. Additionally, the Cadet Engineer may be able to assist the Subdivision Officer with the workload.

In the fullness of time, it is recommended that a similar approach to the northern neighbouring councils is adopted - that is, detail a process and standards, which clearly sets out what Council’s expectations are, including standards of construction etc in a comprehensive policy document. This would require a dedicated resource for a one off project but would result in a clearly articulated set of expectations for developers and the broader community.

Financial Implications

Home builders/owners will have to pay for the s138 approval (currently set at $138.50) and an inspection fee ($118.50). It is not proposed to charge a plan checking fee for single dwellings. It is also proposed for these fees to change to match the fee charged by Assets and Works for the same section 138 approvals for consistency. This fee is currently $220 and will likely increase in 2017/18 by the minimum percentage rate.

By comparison with other Councils, current application costs are as follows:

· Wollongong - $249

· Shellharbour - $317

· Kiama - $190 (including 2 inspections and $100 for additional inspections) this fee refers specifically to a ‘concrete driveway’).

· Wingecarribee - $210 plus $160 per inspection.

It will be an additional cost to home owners, but is a very minor cost relative to the purchase and construction of a new home. Further, the capturing of driveways works to ensure compliance will result in a better outcome for both homeowners and Council with respect to footpaths and driveways in road reserves.

With respect to extensive works in the road reserve that do require detailed plan checking such as lengths of kerb and guttering, pram ramps and so on and multiple inspections that as the section 138, plan checking and 2 inspections be charged with any additional fee authorised by the Development Manager.

Risk Implications

The unregulated construction of driveways has resulted in driveways where vehicles scrape, unsatisfactory gradients over footpaths and trip hazards, extreme difficulty in integrating footpaths with driveways, much to the frustration of subdivision developers who bond their footpath works and construct later when estates are more substantially developed.

Photo 4 – Driveway in Worrigee. This driveway is not only steep, it is elevated above the footpath and presents a trip hazard. It would be difficult to construct a footpath and integrate footpath levels (which need to be relatively flat) with this driveway which has an excessive slope. Noting that it is common practice to use a driveway for vehicle parking, the steepness of the driveway is also of concern. Some Councils acknowledge the use of the driveway for car parking and have adopted specific levels for driveways where it is or acknowledged their use for parking.

Photo 4 – Driveway in Worrigee

Photo 5 shows another excessively steep driveway in Worrigee. This driveway resulted in compliance investigations with the developer not being able to construct a satisfactory footpath and delays in the delivery of the pedestrian footpath in the locality.

Photo 5 – Steep driveway in Worrigee

Photo 6 shows a section of footpath in the Twin Waters Estate, Worrigee. This footpath undulates up and down between driveways in an attempt to integrate with the driveway pavements.

Photo 6 – Existing Footpath in Twin Waters (See also Photo 1)

Internal Consultations / Comments

Council’s Section Managers for Building and Compliance, Asset Management and Manager for the Ulladulla Service Centre were consulted with respect to this report.

The Ulladulla Service Centre Manager advised that there is also the ability for Council to issue generic approvals as an alternative to individual applications. This could apply to driveways that meet a certain standard in prescribed situations and should be further considered following the development of revised designs for Shoalhaven. Further, Council could also develop generic Traffic Management Plans for certain situations eg a conventional lot in a local street. A generic plan could not be issued for busy roads or where a site adjoins an intersection where more detailed controls would be required.

Council’s Asset Manager advised that he was supportive of an accreditation system for concreters similar to Kiama and Shellharbour Councils. This approach has merit and relies on a system of certification but would have to be embedded in a procedure/policy to enable administration and enforcement.

CONCLUSION

Apart from ensuring compliance with Council’s statutory obligations and managing a degree of risk, there are considerable advantages in ensuring appropriate and compliance driveway construction.

The way to ensure this is by consistently requiring approval for the works and specifying and achieving compliance with the relevant standards via an approval and inspection process, in accordance with the Roads Act 1993.

Additionally, there will be a better quality outcome, reduced asset maintenance burden on Council in the long term and improved streetscape and a consistent result. This is commensurate with modern community expectations. The community is looking for improved quality of infrastructure in our new estates and developers are also seeking to deliver better outcomes as well as have a consistent application of the ‘rules’.

Development Committee – Monday 05 June 2017

Page 19

DE17.39 Development Application DA16/1759 - 2159 Moss Vale Road Barrengarry - Lot C in DP 18081

HPERM Ref: D17/88129

Group: Planning Environment & Development Group

Attachments: 1. Clause 4.6 Variation Statement re Clause 4.2D - Minimum Lot Size ⇩

2. Concurrence Letter from Department of Planning & Environment ⇩

3. Clause 4.6 Variation Statement re Clause 4.3 - Building Height Limit ⇩

4. Site Plan ⇩

5. Elevations ⇩

6. Street Elevations ⇩

7. Rendered 3D Sketch and Colour Scheme ⇩

8. Shadow Diagrams ⇩

Description of Development: Erection of single storey dwelling house

Owner: Jonathan Darwen

Applicant: Jonathan Darwen

Notification Dates: 21 July to 5 August 2016

No. of Submissions: No submissions received

Purpose / Reason for consideration by Council

Council is in receipt of an application to construct a new dwelling house at lot C DP 18081, 2159 Moss Vale Rd, Barrengarry. The lot is one of nine of similar size created by a subdivision in 1937 and is the last lot to be developed.

The existing lot and the adjoining small lots are zoned RU1 - Primary Production. The site has an area of 752m²and this zoning requires a minimum 40 hectare lot size under clause 4.2D of Shoalhaven Local Environmental Plan 2014 (SLEP 2014). This variation is beyond Council’s delegation and specific concurrence from the Secretary of the Department of Planning is required. This concurrence has been granted and Council may allow development on this lot.

The dwelling exceeds the 5.5 metre building height set by clause 4.3 of SLEP 2014.

a. The front pavilion of the building has a height of 6.855 metres (24.6% varation);

b. the rear pavilion has a height of 6.285 metres (14.3% variation).

These variations are beyond the proceedures for cl 4.6 variations which provides for variations in excess of 10% to be reported to Council. The application is therefore presented to Council for determination of the variations.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Support the following variations to the relevant development standards in Shoalhaven LEP 2014 for the purpose of the erection of a dwelling house on Lot C in DP18081:

a. variation to the minimum lot size of 40Ha to 750m2, and

b. variation to the 5.5m building height under clause 4.3 to 6.855m.

2. That the application is referred back to staff for determination.

Options

1. Support the variation as presented in the application.

Implications: The development can proceed as proposed, subject to meeting other considerations under section 79C of the Environmental Planning and Assessment Act and subject to such conditions as may be imposed arising from those considerations.

2. Decline to support the variations.

Implications: The applicant would be entitled to appeal against Council’s refusal in the Land and Environment Court.

3. Decline to support the building height variation (only) and invite the applicant to redesign the proposal so as to meet the 5.5 metre building height.

Implications: The applicant would need to substantially redesign the proposal. If the applicant refuses to change the design they would be entitled to appeal Council’s failure to determine the application to the Land and Environment Court as a deemed refusal.

Background

Proposed Development

The proposal is to erect a single storey dwelling on the land. The dwelling comprises two pavilions linked by a lower roofed section housing the entry hall/foyer. Each pavilion has a simple rectangular form with gable roof having a pitch of 40 degrees. The wall cladding is primarily of painted horizontal boards and roofing is of pre-coated corrugated steel sheet. A rendered three-dimensional sketch with colour scheme as viewed from the Moss Vale Road frontage is provided at Figure 1.

Figure 1 – 3D sketch – From Moss Vale Road

The front pavilion contains the sleeping quarters and the rear pavilion contains the living quarters. The building has three bedrooms and a total floor area of 152 m². The site plan for the application is at Figure 2.

Figure 2 – Site plan

Figures 3, 4 and 5 are elevations of the proposed development. The red dotted line depicts the 5.5 metre building height limit. The 5.5 metre building height control originated from Development Control Plan (DCP) 66 - Kangaroo Valley which was transferred into SLEP 2014 as a development control in accordance with the requirements for the Standard Instrument. The intent in the original DCP was to ensure the building height in the hamlet of Barrengarry maintained a compatable scale with adjoining and adjacent development and was single story with a pitched roof (expressed in the performace criteria and acceptable solutions).

Figure 3 – Elevation – front pavilion

Figure 4 – Elevation – rear pavilion

Figure 5 – Street elevation

Subject Land

The subject land is identified as lot C in DP 18081. This allotment was created by subdivision in 1937 and is one of nine residential sized lots. The subject lot is highlighted in orange at Figure 6.

Figure 6 – Location map showing the subject allotment

Site & Context

The site is vacant except for a small open-fronted shed that looks to have been used as a horse shelter. It is a rectangular lot with an area of 752.46 m², a width of 16.46 metres and a depth of 45.72 metres. The site falls to the street frontage with a total fall of about 3 metres overall.

The site has frontage to Moss Vale Road which is a two lane rural road with a speed limit of 80 km/h at this location. There is an open drainage swale at the front of the property with a stormwater pipe headwall at the midpoint of the block that takes stormwater to the eastern side of Moss Vale Road. There is a large eucalypt tree in the road reserve at the southern end of the frontage of the land.

Both town water and mains sewerage are available to the site.

On each side of the site there are single dwellings on similar sized lots. To the rear of the site there is a larger vacant lot of 3.49 ha. Opposite the site is a small rural holding of 9.52 ha containing a dwelling with an approval for a bed and breakfast. Three properties to the west is the former Barrengarry Post Office, store and residence, now operating as the Kangaroo Valley Pie Shop. This building is listed as a heritage item under the SLEP 2014.

A street view of the site from Moss Vale Road frontage is shown at Figure 7.

Figure 7 - View of the site from Moss Vale Rd

(Source: Google Maps)

History

The land was created by subdivision in 1937. There have been a number of dwelling applications over the years with the following outcomes:

BA 93/3130 – approved but withdrawn by applicant as work not proceeding.

DA 93/2274 – approved (not activated)

DA 02/3584 – withdrawn

DA 15/2353 - withdrawn

The current application (DA 16/1759) is essentially the same as DA15/2353 but now has a statement of concurrence from the Department of Planning and Environment in respect of the minimum lot size variation.

Issues

There are two issues for Council to consider with this application and these relate to variation of the minimum lot size and the maximum building height under SLEP 2014.

The subject land is zoned RU1 Primary Production and is subject to the following development standards:

a) a minimum lot size for the erection of a dwelling of 40 hectares under clause 4.2D; and

b) a maximum building height of 5.5 metres under clause 4.3.

Clause 4.2D of Shoalhaven LEP2014

Clause 4.2D references the Minimum Lot Size Map which specifies a minimum lot size for the erection of a dwelling of 40 hectares.

Applicant’s Submission

The following information was provided by the applicant in support of this variation:

· Clause 4.6 variation statement for clause 4.2D (Attachment 1).

The principal reasons for support outlined in the variation statement are:

· the use of the land for the purposes of a dwelling house is logical because it is the same size as adjoining residential lots and will complete the row of housing at Barrengarry;

· the lot is fragmented and alienated from the adjacent rural land and it would not be used for primary production given its size and fragmented nature;

· the development is unlikely to have a significant impact on either the adjoining residential or rural land.

Discussion

The applicant needs to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard. Council cannot grant consent for such a development unless it is satisfied the applicant has adequately addressed the above matters. Further, the proposal must be in the public interest because it is consistent with the objectives of both the development standard and the zone in which the development is proposed.

The objectives of the development standard are:

(a) to minimise unplanned residential development;

(b) to enable the replacement of lawfully erected dwelling houses in certain rural, residential and environment protection zones;

(c) to control rural residential density affected by historical subdivision patterns in Zone R5 Large Lot Residential.

Objectives (b) and (c) above are clearly irrelevant to the current proposal as there is not an existing lawfully erected dwelling and the land is not within the R5 Large Lot Residential zone.

The development is considered to be consistent with objective (a) as:

· the lot was created by a subdivision in 1937 that facilitated the development of dwellings on small lots and effectively established Barrengarry;

· Council has developed water and sewerage networks to service existing residential development at Barrengarry;

· Shoalhaven Water has provided a connection point for this property to the pressure sewer system servicing Barrengarry.

The objectives of the RU1 Primary Production zone are:

· to encourage sustainable primary industry production by maintaining and enhancing the natural resource base;

· to encourage diversity in primary industry enterprises and systems appropriate for the area;

· to minimise the fragmentation and alienation of resource lands;

· to minimise conflict between land uses within this zone and land uses within adjoining zones;

· to conserve and maintain productive prime crop and pasture land;

· to conserve and maintain the economic potential of the land within this zone for extractive industries.

Development for the purpose of a dwelling house is permissible with consent in the RU1 Primary Production zone. It is unlikely that the development would be able to be used for any purpose associated with primary production, due to its extremely small size and close proximity to a number of dwellings. The site is already fragmented and it is unlikely that it would be consolidated with adjoining rural land. Given that the land is bordered on two sides by land used for residential purposes, the proposed use will not conflict with existing or proposed use of surrounding land for primary production purposes.

Consequently the development is considered to be consistent with the zone objectives.

The applicant has adequately addressed the required matters and the proposal will be in the public interest because it is consistent with the objectives of both the development standard and those of the RU1 Primary Production zone.

Concurrence of the Department of Planning and Environment

The lot has an aea of 752.46 m² and this zoning requires a minimum 40 hectares. This is a variation of 98.12%. As the variation is more than 10% from the minimum lot size, Council cannot grant approval to the application without the concurrence of the Department of Planning and Environment.

The Secretary’s delegate has granted concurrence to the application (refer to copy of letter at Attachment 2). This concurrence does not oblige Council to support the variation but allows Council to approve the application if it so determines. In this instance, the variation is recommended.

Clause 4.3 of Shoalhaven LEP 2014

Clause 4.3 of SLEP 2014 imposes a 5.5 metre maximum building height on the land. The application proposes a building with a maximum height of 6.855 metres. The elements of the building that exceed the 5.5 metre height limit are the front pavilion of the building, which has a maximum height of 6.855 metres (24.6% variation) and minimum height of 5.909 metres (7.4% variation), and the rear pavilion which is compliant at its western extremity and has an encroachment to 6.285 metres (14.3% variation) at its eastern extremity.

Applicant’s Submission

The following information was provided by the applicant in support of this variation:

· clause 4.6 variation statement for clause 4.3 (Attachment 3);

· an assessment of the impact of the development on nearby heritage items (contained within the clause 4.6 variation statement);

· elevations showing height of the buildings in relation to the 5.5 metre height limit (Attachment 5);

· street elevations (Attachment 5);

· rendered 3D sketch and colour scheme (Attachment 7);

· shadow diagram (Attachment 8).

The clause 4.6 variation statement identified the following reasons for the variation to the height limit:

· the proposed height non-compliance is only minor and will not be out of character with the surrounding buildings;

· the likely impacts of the proposed development will not differ noticeably compared to a strictly complying development scheme;

· the building seeks to respond to the 3 metres in fall from the rear of the site to the front by stepping down the slope in three levels;

· the proposal is a superior design outcome compared to a complying scheme;

· the gable roof form and materials are compatible with neighbouring buildings and the rural character of the area.

Discussion

Again, the applicant needs to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and that there are sufficient environmental planning grounds to justify contravening the development standard. Council cannot grant consent for such a development unless it is satisfied the applicant has adequately addressed the above matters. Further, the proposal must be in the public interest because it is consistent with the objectives of both the development standard and the zone in which the development is proposed.

The objectives of the development standard are:

(a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of a locality,

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

(c) to ensure that the height of buildings on or in the vicinity of a heritage item or within a heritage conservation area respect heritage significance.

The development is considered to be consistent with the objectives of the development standard for the following reasons:

· the building is a single storey dwelling with a modest floor area;

· the development has addressed the design guidance in the Kangaroo Valley DCP Chapter (Chapter N1 of Shoalhaven DCP 2014) to minimise the scale of the development and to reflect the simplicity of building forms and external materials that are characteristic of the area;

· the front of the building is set back 4m further than the existing predominant building line of 7.5m – 8m and this minimises the visual impact from the street frontage;

· the development will not have any adverse impact in terms of disruption of views or loss of privacy to adjoining development and will have minimal and acceptable impact on solar access;

· the height of the building will not have an adverse effect on the nearest heritage item, the former Barrengarry Post Office, store and residence, and the steep gable form of the roof references the street elevation of the Post Office and store in a respectful manner;

· other heritage items, although addressed in the applicant’s variation statement, are sufficiently distant from the site for the development to not be impacted by the proposal.

Community Engagement

Notification was carried out in accordance with Council’s Community Consultation Policy with letters sent to the owners of fourteen (14) properties within a 100m buffer of the site. The notification was for a 14 day period.

No submissions were received during or after the notification period.

Planning Assessment

The Development Application will be assessed under s79C of the Environmental Planning and Assessment Act 1979.

Policy Implications

There are no specific policy implications that arise from this matter. The procedure in clause 4.6 of Shoalhaven LEP-2014 provides a framework for the variation of standards in a manner which does not undermine the development standard.

Financial Implications

If the decision is appealed it will result in costs to Council for defending the appeal. In most cases this prospect is reasonably remote and is not a matter Council is required or entitled to consider in determining a development application. Accordingly it should not be given any weight in Council’s decision.

Legal Implications

If the application is refused, or if the applicant is dissatisfied with Council’s determination, the applicant is entitled to appeal to the Land and Environment Court.

Under some circumstances, third parties may have a right to appeal Council’s decision to the Land and Environment Court.

Summary and Conclusion

The variation to the 40 hectare minimum lot size is supported for the following reasons:

· the site is well-suited to the proposed use of a dwelling house having regard to its location within a strip of similar sized residential lots at Barrengarry;

· all urban services are available to the site, enhancing its suitability for the intended purpose;

· use of the land for primary production purposes is unlikely and would probably result in unacceptable impacts on the adjoining residential lots.

The variation to the 5.5 metre maximum building height is supported for the following reasons:

· the building is single storey and is of modest scale;

· the design reflects the desired character for development in the Kangaroo Valley area;

· the increased front setback reduces the visual impact of the building;

· no issues of loss of amenity, views, solar access, or adverse impact on heritage significance on nearby heritage items have been raised in assessment;

· no submissions have been received in relation to the development or the variation.

In the cases of both development standards, it is considered that the the applicant has adequately addressed the matters set out in clause 4.6 of SLEP 2014 and the proposal will be in the public interest as it is consistent with the objectives of both the development standards and the RU1 Primary Production zone.

Development Committee – Monday 05 June 2017

Page 51

DE17.40 Planning Proposal (Rezoning) - St Vincent and Deering Streets, Ulladulla (Your Urban Designer)

HPERM Ref: D17/91270

Group: Planning Environment & Development Group

Section: Strategic Planning

Attachments: 1. Planning Proposal - Your Urban Designer (under separate cover) ⇨

Purpose / Summary

Obtain direction on a Planning Proposal (PP) that has been received for Lots 1-7, 9 DP 21597 and Lot CP SP 42583, St Vincent and Deering Streets, Ulladulla.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Give in principle support for the proposed rezoning and building height review for Lots 1-7, 9 DP 21597 and Lot CP SP 42583, St Vincent and Deering Streets, Ulladulla; and submit a Planning Proposal to the NSW Department of Planning and Environment for Gateway determination upon receipt of the final outstanding owners consent.

2. Request that the following be required as a condition of the Gateway determination:

a. Additional visual impact assessment and/or modelling for the planning proposal site following completion of the Review of Building Heights Study (part of Ulladulla CBD) as required by Council.

b. Economic feasibility analysis to consider the proposed heights following completion of the Review of Building Heights Study (part of Ulladulla CBD).

c. Stage 1 Contamination Assessment for Lots 3-7, 9 DP 21597 and Lot CP SP 42583.

3. Require the proponent to pay pro rata costs associated with the preparation of the Review of Building Heights Study.

4. Advise the proponent, adjacent land owners and relevant community groups of this decision, noting the opportunity for formal consultation later in the process.

5. If necessary, receive a further report following receipt of the Gateway determination.

Options

1. Support the PP as per the recommendation.

Implications: This will enable staff to prepare and submit the PP to the Department of Planning & Environment (DP&E) for the initial Gateway determination. Appropriate consideration of contamination, economic feasibility and building height will be required and facilitated through the process.

2. Support the proposed rezoning, but reduce the height limit for consideration.

Implications: While this option could reduce the impact of the proposed development on adjoining properties and be more aligned with community expectation, it may impact on development feasibility.

3. Not support the PP.

Implications: This option is not preferred as the proposed rezoning will potentially allow for a better development outcome for the wider site and could provide greater retail/commercial and residential opportunities for the Ulladulla Town Centre.

Background

This matter was the subject of a number of submissions as part of the Citywide LEP process where the subject rezoning was sought. Given that it was outside the ‘like for like’ zoning intent of that process it was resolved that the matter be considered via a proponent initiated PP.

Council has now received a PP (Attachment 1) from ‘Your Urban Designer’ on behalf of one of the landowners (Mr J Babington of Techmah Pty Ltd) to rezone land on the corner of St Vincent and Deering Streets, Ulladulla (Lots 1-7, 9 DP 21597 and Lot CP SP 42583) (See Figure 1 – Subject Land) from B5 Business Development (See Figure 2 – Current Zoning) to B4 Mixed Use under Shoalhaven LEP2014 to enable higher density residential development on the site.

The proponents PP also proposes to increase the maximum building height from 7.5 metres (current mapped maximum height) to 14 metres (proposed specific mapped height for this site) to facilitate the proposed development.

A copy of the proponents PP has been made available on Council’s website at the following link: http://doc.shoalhaven.nsw.gov.au/DisplayDoc.aspx?record=D17/85957.

Figure 1: Aerial Map

Figure 2: Current Zoning

Prior to receiving the proponents PP, a pre-lodgement meeting was held between the proponent and Council staff over Lot 1 and 2 DP 21597 St Vincent Street, Ulladulla only (the Babington site). Staff advised that rezoning the entire B5 zoned area within the block would be preferable rather than the two lots in isolation. Additionally, it was advised that potential contamination of the site would need to be considered. The requested change in height was not proposed or discussed at the pre-lodgement meeting.

At the time of writing this report, owner’s consent for all land within the PP subject area has been provided, with the exception of one. Council staff formally accepted the PP on the basis that this remaining signature would be required before the PP could be sent to DP&E for a Gateway determination. As such, the report recommendation reflects this requirement.

Planning Proposal

The proponents PP seeks to rezone the subject land from B5 Business Development to B4 Mixed Use under the Shoalhaven Local Environmental Plan (LEP) 2014 to enable higher density residential development on the site, most likely in the form of residential flat buildings/shop top housing with at grade parking. The rezoning would extend the existing B4 Mixed Use zone that currently applies to the rest of the land within the wider block. This is essentially a change from one business zone to another.

The current B5 Business Development zone was implemented as part of the Citywide LEP as a ‘like for like’ transfer from the previous Business 3(b)(transitional) zoning of the site under Shoalhaven LEP 1985. The previous 3(b) zone reflected the ongoing historical land uses associated with the site (manufacturing/steel fabrication/boat building).

Whilst the current B5 zoning of the site permits mixed use development as ‘shop top housing’, it would also essentially require the entire ground floor to be commercial in nature. It is noted that the surrounding adjacent land to the north and east in the same block does not have this restriction due to the B4 zoning. The proponent has indicated that a B4 Mixed Use zone would enable an element of flexibility resulting in a better design outcome, as shop top housing would require at grade parking (behind a commercial or residential façade) to ensure feasibility. Further, a limited amount of commercial floor space would better compliment the adjoining residential development along the western side of St Vincent Street.

The proponents PP also proposes to increase the maximum mapped building height limit of 7.5 metres to 14 metres to enable the development to achieve a more desirable (and feasible) outcome for the proponent. Within the current maximum height of 7.5 metres a two storey development could be expected, however with a 14 metre height a 4 storey development could potentially be achieved.

Relevant Strategies

The following existing planning strategies are relevant to this location and their consistency with the PP is discussed below.

Milton-Ulladulla Structure Plan

This plan applies to the Milton-Ulladulla area and establishes a set of principles to manage appropriate growth in the area and it underpins the current zonings in the area. It identifies Ulladulla CBD as the sub regional retail core and commercial hub of southern Shoalhaven.

The subject site has been identified in the Structure Plan as ‘tourist orientated retail’ with ‘preferred off-street parking’ (Figure 3). It is noted that the land to the south and east of the subject site, also earmarked for tourist orientated retail, have not been developed for this purpose. Development mostly consists of general/service retail (including bulky goods) and commercial land uses.

Figure 3: Excerpt of Milton-Ulladulla Structure Plan (Ulladulla CBD)

The Structure Plan outlines the demand for appropriate housing within the Milton-Ulladulla area to respond to population growth and future demographics (e.g. aged population).

The requested rezoning will still enable the provision of retail and commercial floor space within the Ulladulla CBD and would not diminish the opportunity for tourism orientated retail should the demand be present. Further, the provision of supplementary residential development in this location does not hinder this opportunity, but seeks to cater for the growing demand of higher density residential development close to centres.

The PP is thus considered to be broadly consistent with the Structure Plan and enables an appropriate level of flexibility.

Illawarra-Shoalhaven Regional Plan

This Plan aims to encourage a variety of housing choices to meet the Regions changing housing demands over the next 20 years. Direction 2.2 of the Plan seeks to ‘support housing opportunities close to existing services, jobs and infrastructure in the region’s centres’ and the PP is consistent with this direction. Ulladulla is one centres identified where increased housing activity should be focussed.

The PP is considered to be broadly consistent with the Regional Plan.

Community Strategic Plan, Shoalhaven 2023 (CSP)

This Plan (currently under review) identifies objectives and strategies for prosperity in Shoalhaven and creating opportunities for growth to existing services. The following objectives and strategy are directly relevant to this PP:

· Objective 1.5 - Major town centres that are attractive, vibrant and popular destinations.

· Objective 2.2 - Population and urban settlement growth that is ecologically sustainable and carefully planned and managed.

· Strategy 2.2.1 - Develop land use and related plans for the sustainable growth of the City which use the core principles of the Growth Management Strategy and ESD principles, also carefully considering community concerns and the character of unique historic townships.

· Strategy 2.2.2 - Facilitate the provision of housing that meets the changing needs and expectations of the community.

The PP is not inconsistent with the CSP.

Key Issues

The initial review of the proponents PP has identified the following key issues related to height (amenity) and contamination impacts. Consideration of these issues will need to be conditioned as part of the Gateway determination should Council support the advancement of the PP.

Height - Amenity Impact

Currently the site is surrounded by:

· Low, medium and higher density residential development to the west, south west and north.

· One and two storey retail and commercial premises to the east and south.

It is acknowledged that the change in one business zone to another to enable residential flat development would be more complementary to the surrounding residential area than the current manufacturing/boat building business on the site. However, the requested increase in height is perhaps the issue that requires closer scrutiny as it is likely to impact on the streetscape and character of the surrounding residential area, and will potentially have a significant impact on adjacent low density residential properties that have a maximum building height of 7.5 or 8.5 metres. Further, the prominence of the site, being located on a ridgeline, could result in future development being visible from beyond the immediate vicinity. Figure 4 shows the site and the current mapped LEP heights on adjoining land.

Figure 4: Height of Surrounding Land

The original intent of the current height controls for the site were to ensure that any development along the ridge of Deering Street would not have an adverse impact on the appearance of the town centre from the civic centre/harbour area.

The proponents PP does not provide any discussion on possible visual impacts and broader visibility of future development.

The proponents PP does not attempt to justify the increase in height with the provision of any supporting documentation. The justification for the proposed 14m height is that “the proposed development would have the height in-line with existing maximum height with the adjoining lots on the northeast of the subject land” and that a 14 metre height limit would enable an economically feasible 4 storey mixed use development that will allow at grade parking. The proponent considers basement car parking to be cost prohibitive. The proponents PP does not provide any discussion on the impact of the increase in height on the streetscape and character of the adjoining area.

On 28 March 2017, Council considered DA16/2412 for a three (3) storey office building comprising ground floor car parking and two levels of office space at Parson Street, Ulladulla. The application sought a 46% (3.5m) variation to the 7.5m height limit. Following the resolution to not support the proposed variation, Council also resolved (part MIN17.218(2)) to:

Undertake a review of the 7.5m building heights in this part of the Ulladulla Town Centre in the next 6 months which is limited to the area south of Deering Street and the B5 and R3 zones.

Council staff have recently commenced the process to engage consultants for the Review of Building Heights Study and have expanded the study area to strategically encompass the two adjacent 7.5m blocks immediately north of Deering Street as shown in Figure 5.

Figure 5: Study Area - Review of Building Heights Study

The subject land for this PP is included in this broader study area. It is expected that the Review of Building Heights Study will inform any change to heights within the study area and will consider the PP subject land as part of the wider precinct rather than in isolation, thus resulting in a better strategic outcome. The proponent will directly benefit from this study and it is thus recommended that relevant costs be recovered via a pro rata arrangement.

Further visual impact assessment and/or modelling may be required in addition to the Review of Building Heights Study to consider the visibility of future development when viewed from the surrounding area. This should be undertaken as required by the proponent to Council’s satisfaction following the Gateway determination.

As economic viability is one of the proponent’s key justifications for an increase in height, it is recommended that the feasibility of the proposed heights be considered through an economic analysis following the Review of Building Heights Study.

Contamination Impact

Due to the industrial/manufacturing history of the site, there is a risk of contamination. In response to this, the proponent has supplied statements within their PP constituting a Stage 1 Contamination Assessment for 116-118 St Vincent Street which has been considered by Council staff to be acceptable at this stage.

A Stage 1 Contamination Assessment has not been provided for the remaining lots subject to the planning proposal (Lots 3-7, 9 DP 21597 and Lot CP SP 42583). It is recommended that a Stage 1 Contamination Assessment be requested as a condition of the Gateway determination.

This issue is considered relevant at this stage as the rezoning will effectively enable additional residential development on the site and at ground level.

It is noted that contamination also will need to be considered further as part of any future development application.

CONCLUSION:

The proponents PP seeks to rezone the subject land from B5 Business Development to B4 Mixed Use under Shoalhaven LEP 2014. The PP also seeks to increase the maximum height from 7.5 metres to a specific mapped height of 14 metres.

The rezoning proposal is generally consistent with the relevant strategies and will enable the development of higher density residential development in line with the rest of the block. The change from one business zone to another is supported.

Support for the increase in maximum building height from 7.5 metres to 14 metres needs to be considered in the context of the site, its surroundings and visual prominence. The issue of proposed building heights in the Ulladulla CBD has been a vexed issue over a long period of time. As such, the inclusion of the site in the Review of Building Height Study and requirement for additional visual impact and economic feasibility analysis will assist in tailoring the mapped building height as the PP advances.

Community Engagement

The PP has been made available on Council’s pre-Gateway Planning Proposal website for information purposes and the adjoining land owners and Ulladulla & Districts Forum were notified accordingly. No submissions were received at the time of writing this report.

Council staff and the proponent were invited to discuss the planning proposal at the Ulladulla & Districts Forum’s meeting on 1 May 2017. Concern was raised by Forum Members about the height and potential for residential flat buildings associated with the B4 Mixed use zone.

The PP submission included letters of support from a number of stakeholders (including landowners in proximity to the subject land and the Member for South Coast, Shelley Hancock MP), however it is noted that the support was for the initial scope of the planning proposal being 116-118 St Vincent Street only, not the current 9 lot proposal. A number of the letters note that the current industrial type activity is now not appropriate in this location and the rezoning will allow its relocation. A copy of the letters of support will be available for viewing in the Councillors Room prior to the Development Committee meeting.

If the PP receives Gateway determination, the determination will outline the statutory exhibition requirements in accordance with the relevant legislation. This will involve notifying all adjoining landowners, relevant community groups and other interested parties. There will also most likely be the opportunity for community involvement and input into the broader Review of Building Height Study that has commenced for this area.

Financial Implications

The proponent has paid the initial PP lodgement fee in accordance with Council’s Fees and Charges. The proponent will be required to fund or undertake any studies associated with the PP following the Gateway determination. Staff resources are also required to progress the proposal.

Fees for the remaining stages of the PP will be charged in accordance with Council’s Fees and Charges.

Due to the direct benefit the proponent will gain from the Review of Building Height Study, it is recommended that the proponent pays pro rata costs associated with the preparation of the Study.

Development Committee – Monday 05 June 2017

Page 59

DE17.41 Options - Dual occupancy development - Old residential area of Berry

HPERM Ref: D17/133020

Group: Planning Environment & Development Group

Section: Strategic Planning

Purpose / Summary

Following a notice of motion, Council resolved to investigate the options available for “an amendment to the SLEP aimed at eliminating the ability to create dual occupancies in the old residential area of Berry”.

This report responds to this resolution and details the options available to Council in this regard.

Recommendation (Item to be determined under delegated authority)

That Council:

1. Receive this options investigation report and provide a direction to progress.

2. Consult with the Berry Forum on the preferred option.

Options

1. Pursue an option outlined in this report.

Implications: This is the preferred option as it will enable Council to protect the character of the old residential area of Berry as resolved (MIN 17.131).

2. Receive this report for information.

Implications: This option is not favoured as it does not necessarily respond to the Council resolution. Dual occupancy development will remain permissible with consent within the R1 General Residential, R2 Low Density Residential, R3 Medium Density Residential and E3 Environmental Management zones in Berry. Within these zones, dual occupancy development could also be considered as complying development under the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 potential removing Council involvement in the assessment and construction stages completely.

Background

On 28 February 2017 (MIN17.131), Council considered a notice of motion to protect the character of the old residential area of Berry (the study area). For the purposes of this report, the study area is identified in Figure 1. Council subsequently resolved to investigate options to prohibit dual occupancy development in the study area.

Figure 1: Study area and zoning

The main concern appears to be the changing character of Berry resulting from dual occupancy development where the existing dwelling house is demolished rather than integrated into the proposal.

In 2012, Council resolved as part of the Shoalhaven Local Environmental Plan 2014 (LEP 2014) process to investigate the possible heritage listing of Berry to protect the existing heritage character of the area.

The Berry Community Strategic Plan, which Council endorsed for consideration in December 2016, includes as a focus the desire to “preserve the towns heritage character and ‘village feel’”. This plan also includes a focus to “explore ways to improve housing affordability into the future”.

Within the study area, under Shoalhaven LEP 2014, dual occupancies are currently permissible with consent in the following zones (see Figure 1 for land zoning map):

· R1 General Residential (attached and detached dual occupancy).

· R2 Low Density Residential (attached and detached dual occupancy).

· R3 Medium Density Residential (attached and detached dual occupancy).

· E3 Environmental Management (attached dual occupancy – subject to clause 4.2D Exceptions to dual occupancies (attached) and dwelling houses).

In considering the options to prohibit dual occupancies in the study area, the possible implications of the State Government’s proposed amendment to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) and draft Design Guide should be considered. The proposed Code SEPP Amendment was prepared to fill the gap in complying development policy in the Codes SEPP by introducing provisions that would apply to low rise medium density housing types including dual occupancy development. Under the proposed Code SEPP Amendment, a dual occupancy development could be undertaken as complying development where:

· Dual occupancy development is permissible with consent in the following zones.

o R1 General Residential

o R2 Low Density Residential

o R3 Medium Density Residential

o RU5 Village

· Land has not been excluded under Clause 1.19 of the Codes SEPP (e.g. land within a heritage conservation area etc.).

This means that Council may ultimately have no involvement in the approval or construction process should the changes be implemented as exhibited. The NSW Department of Planning and Environment (DP&E) are anticipating that the proposed Code SEPP Amendment and Design Guide will be made effective by mid/late-2017.

Options

There are a number of mechanisms available that could work to protect the character of the study area including:

· Prohibit dual occupancies on land within the study area.

· Apply ‘matters for consideration’ local clause.

· Rezone land within the study area.

· Apply a minimum lot size for dual occupancy development.

· Apply a heritage conservation status to the study area.

· Make no change to Shoalhaven LEP 2014 but manage character via development control plan (DCP) provisions.

These options are discussed in detail below.

Note: this report does not comment on currently permissible higher density land uses in the study area, such as attached dwellings and multi dwelling housing. These land uses are permissible with consent in the R1 General Residential and R3 Medium Density Residential zones (3 zoned areas within the Study Area).

1. Prohibit dual occupancies on land within the study area

As per MIN17.131, Council specifically resolved to investigate prohibiting dual occupancy development in the study area.

When first considering an amendment to Shoalhaven LEP 2014, the model clauses prescribed by the NSW Standard Instrument (Local Environmental Plans) Order 2006 and Standard Instrument—Principal Local Environmental Plan (Standard Instrument LEP) must be considered. The Standard Instrument LEP prescribes the form and content of Shoalhaven LEP 2014.

Theoretically, based on the model clauses within the Standard Instrument LEP, dual occupancy development could be made a prohibited land use in the above zones via the relevant land use tables, as it is not a mandatory land use. This would however effectively prohibit dual occupancy development in these zones throughout Shoalhaven which is not the intent of the Council resolution.

A more appropriate outcome would be to retain dual occupancy development as a permissible land use in these existing citywide zones but prohibit it in the Study Area. A new local clause could be inserted into Shoalhaven LEP 2014 prescribing that dual occupancy development in the Study Area is prohibited despite permissibility in the relevant land use table. This clause would undermine/subvert the intent of the relevant land use tables thereby making it effectively an illegal subzone which would not be supported by DP&E.

Despite the technical ability to prohibit dual occupancies in Shoalhaven LEP 2014, consideration must be given to the broader strategic context. Berry, like all of Shoalhaven, is subject to the provisions of the Illawarra-Shoalhaven Regional Plan (Regional Plan).

Direction 2.1 of the Regional Plan outlines the expectation that zonings and planning controls are to maintain, or in some cases, increase capacity for housing (i.e. higher density land uses). Direction 2.2 of the Regional Plan supports housing opportunities close to existing services, jobs and infrastructure. Berry is specifically identified as a centre where increased housing activity could be focussed due to its location on the South Coast Railway Line and proximity to the Berry Railway Station. Further, the Regional Plan clearly identifies Berry as having capacity for dual occupancy development.

It would be difficult to justify that the prohibition of dual occupancy development in the study area would be consistent with the objectives and actions of the Regional Plan and as a result the related Section 117 Direction related to the implementation of the Regional Plan. Thus, it would be unlikely that any planning proposal to prohibit dual occupancy development would be supported by DP&E.

2. Apply ‘matters for consideration’ local clause

An additional local clause could be inserted into Shoalhaven LEP 2014 requiring additional matters to be considered prior to consent being granted for dual occupancy development in the study area. This could include, for example, character statements or design objectives. However, the wording of any such clause could not make dual occupancy development impossible to realise, or be prohibited, as this would undermine/subvert the intent of the relevant land use tables thereby making it effectively an illegal subzone. Shoalhaven LEP 2014 already includes similar local clauses such as clause 7.16 Ground floor development on land in zone B3 and clause 7.21 Development in the vicinity of the Western Bypass Corridor to name a few.

This option could be pursued via a Council initiated planning proposal. Depending on the proposed matters of consideration, the opportunity for dual occupancy development in Berry could be significantly reduced and therefore may be considered inconsistent with the Regional Plan.

Any local clause, if pursued, would not prohibit dual occupancy development under Shoalhaven LEP 2014 and therefore dual occupancy could ultimately still be considered as complying development under the proposed Code SEPP Amendment.

3. Rezone land within the study area

Rezoning the study area could provide an opportunity to prohibit dual occupancy development without adversely impacting other areas in Shoalhaven. Based on the existing zones in Shoalhaven LEP 2014 and Standard Instrument LEP, there are no suitable alternative zone options that would satisfy the requirements of Berry as currently all residential zones allow dual occupancy development.

Blue Mountains City Council (BMCC) is currently petitioning the State Government to make an amendment to the Standard Instrument LEP to insert a suggested new residential zone - R6 Residential Character Conservation. Such a zone would enable BMCC to retain an equivalent to its current Living Conservation zone which generally applies (in part) to an older/period character housing and seeks to protect the character of these areas (e.g. Leura). BMCC have submitted a planning proposal to Gateway for an amendment to its local environmental plan, however until the Standard Instrument LEP is amended, a Gateway determination cannot be issued. Whilst there seems to be some support for an amendment of this nature, there is no certainty that DP&E will agree. Interest from other local government areas and political representations may assist in expediting this process.

Based on the BMCC model, it could be appropriate for Berry to be rezoned R6 if/when the Standard Instrument is amended. This would enable Council to specifically tailor the land use table and objectives for the study area to align with existing and future desired character identified by Council and the community.

Further, as dual occupancy development would be prohibited under Shoalhaven LEP 2014, it could not be considered as complying development under the proposed Code SEPP Amendment.

Introducing an R6 zone into Shoalhaven LEP 2014 to prohibit dual occupancy in the Study Area could be pursued via a planning proposal, however it would be difficult to justify that the prohibition would be consistent with the Regional Plan or related Section 117 Direction. Thus, it would be unlikely that pursuing a planning proposal for a new R6 zone would be supported by DP&E.

4. Apply a minimum lot size for dual occupancy development

A minimum lot size for dual occupancy development in Berry could be introduced into Shoalhaven LEP 2014 to control dual occupancy through lot size. Clause 4.1B Dual occupancy development in Zone R3 acts to restrict dual occupancy development to sites less than 800m² to facilitate a higher density in certain areas. In Berry, the opposite could be applied. A minimum lot size could be applied to require larger sites for dual occupancy development. This may reduce desirability of dual occupancy development, however such a clause would not restrict it entirely. Further, the character of the area could still be adversely impacted by future dual occupancy development.

It may be difficult to justify that the application of a minimum lot size to discourage dual occupancy development in the study area is consistent with the objectives and actions of the Regional Plan, particularly the expectations for Berry. A planning proposal of this nature may not ultimately be supported by DP&E.

A minimum lot size clause would not prohibit dual occupancy under SLEP 2014 and therefore dual occupancy could still be considered as complying development under the proposed Code SEPP Amendment.

5. Apply a heritage conservation status to the study area

Listing an area as a heritage conservation area (HCA) in an LEP is a mechanism to help conserve the overall heritage significance of that area. Should the study area potentially become a HCA, an additional level of protection would be available.

Although dual occupancy development would remain permissible with consent in certain zones within the study area, the demolition of a building within a heritage conservation area would require more rigorous assessment as per legislative requirements. Council is required to consider the effect of the proposed development on the significance of the area and a heritage assessment and/or heritage conservation management plan may be required.

On 15 May 2012, as part of the Citywide LEP process, Council resolved (MIN12.494) to:

Investigate the inclusion of the Berry Township Urban Conservation Area as a Heritage Conservation Area in Council’s LEP as a matter for consideration following the completion of LEP 2009.

Any investigation would require a review of the existing Shoalhaven Heritage Study to assess the significance of the whole urban township area and review identified heritage precincts in Berry that were not included as HCAs in Shoalhaven LEP 2014. Council staff have attempted to secure funding via the NSW Heritage Grants for the study, however to date have been unsuccessful. It is estimated that the study would be in the vicinity of $20,000.00.

Additionally, given the potential impacts of this approach, detailed community consultation and support would be required.

Listing the study area as a HCA could be pursued via a Council initiated planning proposal. A HCA listing could significantly reduce opportunity for dual occupancy in Berry and may be considered inconsistent with the Regional Plan. Despite this, one of the key principles of the Regional Plan is for Councils to “conserve heritage assets when undertaking local strategic planning and development”. Any planning proposal would need to balance the competing actions and directions of the Regional Plan.

HCA’s is a specific land exemption under the Codes SEPP and therefore dual occupancy could not be considered as complying development under the Codes SEPP.

6. Make no change to SLEP 2014 and manage character via DCP provisions

Council staff are currently preparing Amendment 9 to Shoalhaven DCP 2014 which includes a review of existing dual occupancy provisions in Chapter G13: Dual Occupancy Development and the introduction of better-quality design controls to improve the standard of finished development. This amendment would help guide better quality dual occupancy development throughout Shoalhaven.

Shoalhaven DCP 2014 could also be amended to include a new area specific chapter applying to the study area. This chapter could include provisions to protect the existing character, including detailed design provisions for dual occupancies beyond the generic provisions of Chapter G13: Dual Occupancy Development. To incentivise the retention of the existing dwelling, a floor space ratio bonus (or the like) could possibly be introduced.

As this is a design based exercise, dual occupancies would remain permissible in Shoalhaven LEP 2014 and there would be no guarantee that incentives would be taken up. As no changes to Shoalhaven LEP 2014 would be made, dual occupancy could ultimately be considered as complying development under the proposed Code SEPP Amendment.

To assist with certainty, a complementary amendment to Shoalhaven LEP 2014 may also be required.

Community Engagement

No community engagement has been undertaken to date as this report details the potential options available to Council. Any amendments to Shoalhaven LEP 2014 or Shoalhaven DCP 2014 will include community consultation in accordance with legislative and project requirements.

The Berry Forum will be advised that this report is being considered by Council and it is suggested that, at a minimum, they be consulted on which option is pursued.

Policy Implications

As identified above, a number of the options put forward may be considered inconsistent with State Government policy (e.g. Illawarra Shoalhaven Regional Plan). As such, future planning proposals, where an amendment to Shoalhaven LEP 2014 is required, may be difficult to pursue without political intervention.

Financial Implications

There are no immediate financial implications for Council as a result of this report.

Should Council continue to pursue listing Berry as a heritage conservation area, Council may need to fund the estimated $20,000.00 required to review the Shoalhaven Heritage Study.

Any future amendment to Shoalhaven LEP 2014 or Shoalhaven DCP 2014 will require financial commitments from Council. These will be separately considered and reported as needed in the future.

Development Committee – Monday 05 June 2017

Page 65

DE17.42 SF10554 – 1 Greens Road Greenwell Point – Lot 1 DP 530097

DA. No: SF10554/4

HPERM Ref: D17/140378

Group: Planning Environment & Development Group

Section: Development Services

Description of Development: Nine (9) Lot Subdivision

Owner: Rosebery Spray P/L

Applicant: Cowman Stoddart Pty Ltd

Notification Dates: 6 January 2017 to 21 January 2017

No. of Submissions: Nil

Purpose / Reason for consideration by Council

This report is provided due to the proposed development being inconsistent with the provisions of Chapter G9: Development on Flood Prone Land, Shoalhaven Development Control Plan 2014 (SDCP 2014).

Recommendation (Item to be determined under delegated authority)

That the Committee:

1. Confirm that it does not support the departure from the Performance Criteria P3.2 and P3.3 of Control 5.3 Subdivision in the Floodplain, Chapter G9, SDCP 2014; and

2. Refer the application (SF10554) back to staff for determination.

Options

1. Resolve not to support the departure from the Performance Criteria P3.2 and P3.3 of Control 5.3 Subdivision in the Floodplain, Chapter G9, SDCP 2014.

Implications: The application will need to be amended to demonstrate compliance with Chapter G9, SDCP 2014. If this cannot be achieved the application may be determined by way of refusal.

2. Resolve to support the departure from the Performance Criteria P3.2 and P3.3 of Control 5.3 Subdivision in the Floodplain, Chapter G9, SDCP 2014.

Implications: This will permit the application to proceed in its current form. Council could be open to litigation if a major flood event occurs and there is substantial damage to assets and increased dependency on emergency services. This is mitigated if council ensures that building envelopes are created above the 1 in 100 flood levels and all structures are in flood free areas. The Floodplain Manual states that it is not designed to sterilise land and council would need to weigh this principle up with the SES position that development should not place further demands on emergency services during flood events.

Figure 1 – Location Map

Background

Proposed Development

The application seeks approval for a nine (9) lot subdivision including the demolition of three (3) existing buildings on the subject land and minor earthworks (filling) to provide building platforms on six (6) of the proposed lots.

A 6m wide right of access is proposed to Greens Road in order to service six (6) of the proposed lots.

Subject Land

The development site comprises Lot 1 DP 530097 (1 Greens Road, Greenwell Point). Refer to Figure 1.

Site and Context

The development site:

§ Contains an existing factory building, a large timber-framed, steel/fibreglass cladded shed and a concrete storage shed;

§ Is zoned R2 Low Density Residential and has an area of 8,555.31m²;

§ Is identified as being part flood prone land;

§ Has existing access from Greens Road; and

§ Adjoins land zoned R2 Low Density Residential and R3 Medium Density Residential, under the Shoalhaven Local Environmental Plan 2014.

History

The following provides details on pre-lodgement discussions, post-lodgement actions and general site history:

§ A pre-lodgement meeting was held with Council planning, subdivision and flood engineering staff and the applicant’s planning consultants (Development Advisory Unit (DAU) Meeting on 30 May 2016).

§ Council resolved on 7 November 2016 to adopt Amendment No. 5 to SDCP 2014 and “defer the draft changes to Chapter G9: Development on Flood Prone Land relating to subdivision in Greenwell Point to seek legal advice and remove the current wording in the DCP pending a further report on further advice.”

§ The application was lodged on 20 December 2016.

§ Council’s Flood Unit recommended on 2 February 2017 that this application not be supported due to evacuation difficulties in the event of flooding.

Advice from the NSW State Emergency Service (dated 19 January 2017) was included, supporting their recommendation and highlighting that further subdivision and development at Greenwell Point “would not be an orderly planning outcome, unless sufficient evidence can show that the period of isolation is tolerable for the future residents in flood events up to and including the probable maximum flood.”

§ Council resolved on 14 March 2017 to:

“1. Not provide additional development restrictions in Greenwell Point and consider each development application on its merit in accordance with the provisions of Shoalhaven LEP 2014 and Shoalhaven DCP 2014; and

2. Undertake a review of the Lower Shoalhaven River Flood Risk Management Plan, Shoalhaven Local Environmental Plan 2014 and Chapter G9 of Shoalhaven Development Control Plan 2014 as required by this Interim Policy position.”

§ With respect to the resolution of 14 March 2017, the report to Council made the following comments:

“Implications: Greenwell Point is somewhat unique from Shoalhaven’s other villages and towns that are also flood affected, given that the village becomes isolated creating an island in which evacuation and access is severely affected for an extended period of time. The liability for Council in allowing further population intensification of Greenwell Point, contrary to the recommendations of the relevant flood study, could at this stage, be significant. It is difficult to determine the scale of litigation that Council could be open to, if a major flood event occurs and there is substantial damage to assets.

Following consideration of the legal advice, it is apparent that the most straight forward approach to ensure the indemnity offered by Section 733 of the Local Government Act is protected, requires Council to follow the process prescribed in the Floodplain Manual and undertake actions in ‘good faith’ to maintain this indemnity. If Council resolves to not restrict development in Greenwell Point as recommended by the FRMS&P, it must acknowledge that if challenged, Council will need to demonstrate how, and on what basis it has acted in ‘good faith’ even though it did not comply with the processes set out in the Floodplain Development Manual. The loss of indemnity is not limited to any policy decisions made by Council regarding its planning controls, but potentially impacts on future decisions by Council in determining development applications in accordance with Council’s adopted policy position.

A review of the FRMS&P is due to commence shortly and it will be carried out in accordance with the principles and process set out in the NSW Floodplain Development Manual 2005. Section 2.7 of which states that “this review should account for changes across the full range of issues originally addressed and consider any associated emergent issues”. A detailed explanation of the process prescribed in the Manual is provided in this report and the attached legal advice (Confidential Attachment 1).

One-off changes to the FRMS&P would still require to follow the process in the Manual and any review would need to be facilitated by a Floodplain Risk Management Committee appointed by the Council to make recommendations following a proper and reasoned process that substantially accords with the principles contained in the Floodplain Development Manual……”

Issues

Performance Criteria P3.2 and P3.3 of Control 5.3 Subdivision in the Floodplain, Chapter G9: Development on Flood Prone Land, SDCP 2014

P3.2 states that “the proposed subdivision will not create new lots that are affected by a high hazard area, or floodway in today’s flood conditions or in climate change conditions up to the year 2100.”

P3.3 states that “the proposed subdivision will not increase the potential population density in any areas (flood prone or flood free) with restricted evacuation access.”

The proposed development is inconsistent with this criterion.

Applicant’s Submission

In support of this application, the applicant has suggested that this restriction does not apply in that proposed amendments to SDCP 2014 will remove it, allowing for subdivision of flood free land within Greenwell Point. Further to this, the applicant considers that the submitted plan of subdivision “demonstrates that there is the ability to subdivide those areas of the subject site which are not flood prone and which will have access to flood free land.”

Discussion

Council’s Flood Unit advised the following on 2 February 2017:

“The subject property is categorised as high hazard flood storage. According to Chapter G9 of the Shoalhaven DCP 2014, this property is not suitable for subdivision. Section 5.3 Performance Criteria P3.2, clearly states that “The proposed subdivision will not create new lots that are affected by a high hazard area, or floodway in today’s conditions or in climate change conditions up to the year 2100”. The applicant has not demonstrated in the submitted Flood Impact Assessment on how this criteria (P3.2) can be achieved.

The applicant has not adequately demonstrated how the proposed subdivision and future developments will not increase dependency on emergency services. The applicant proposed a simplistic approach in that adequate shelter be in place by raising the floor above the flood planning level (FPL). The Lower Shoalhaven Floodplain Risk Management Study (2008) Page 27 clearly states that the Greenwell Point road is the only access route to Greenwell Point and the road closure can occur relatively early in a flood event even lesser than a 10% AEP event. Even though parts of Greenwell Point are above the PMF level, a flood event can potentially leave the residents without essential services such as power, water or sewer, as well as access to food or medical supplies for up to a number of days. During a flood, the presence of ground above the PMF level at Greenwell Point will encourage people to adopt a shelter in place strategy that may not be a safer alternative.

These facts mentioned above will create a greater reliance on emergency services. This development will intensify the population of Greenwell Point and may induce the emergency services to maintain around the clock safety monitoring of isolated residents or to have to implement dangerous and logistically difficult rescue operations. In addition, SES is not supportive of the ‘shelter in place’ strategy, as this can increase the risk to emergency service personnel. Before attempting rescue, emergency service personnel will assess the risk to their own safety. There is therefore no guarantee that rescue will be available for residents who are effectively entrapped in a building during a flood.

Hence, any increase in residential development at Greenwell Point will increase the population at risk from flooding. A decision to enable development that deliberately places more people at risk from flooding, is in contravention to emergency management principles supported by the NSW SES.”

Figure 2 (below) shows the subject site in relation to the mapped flood planning area. There are existing evacuation difficulties and thus a major concern if further development is permitted in this locality (i.e. as a result of approval of this application).

Figure 2 – Flooding Extract

Planning Assessment

The DA will be assessed under s79C of the Environmental Planning and Assessment Act 1979. Subject to the policy issue being resolved, a favourable assessment could potentially result in a conditional approval. If the policy departure is not supported, the application would be required to be amended be refused.

Figure 3 – Proposed Subdivision Layout

Figure 4 – Flood Planning Levels

Policy Implications

The proposed development conflicts with the Performance Criteria (P3.2 and P3.3) of Control 5.3 Subdivision in the Floodplain, Chapter G9: Development on Flood Prone Land, SDCP 2014. It is particularly noted that the development, if approved, will increase the potential population density in Greenwell Point, which already has restricted evacuation access, as detailed in the Flood Unit’s comments above.

Consultation and Community Engagement:

Notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a 60m buffer of the site, including Greenwell Point Get to the Point Program (Inc.) during the period 6 January 2017 to 21 January 2017.

No submissions were received with respect to the notification.

Financial Implications:

There are potential cost implications for Council in the event of a refusal of the application. Such costs would be associated with defending an appeal in the Land and Environment Court of NSW.

Legal Implications

If the development application is refused, the applicant could elect to challenge the decision in the Land and Environment Court. The liability for Council in allowing further population intensification of Greenwell Point, contrary to the recommendations of the relevant flood study, is unknown. It would also need to be pointed out that the extent and type of flood event relative to impacts, would also potentially influence any action.

Summary and Conclusion

The proposed development is inconsistent with the provisions of Chapter G9: Development on Flood Prone Land, Shoalhaven Development Control Plan 2014 (SDCP 2014) – as outlined in this report.

Council may not be covered by protections of Section 733 of Local Government Act if further population intensification of Greenwell Point is permitted and a major flood event occurs, causing substantial damage to assets and greater reliance on emergency services.

Based on the current framework, the policy departure should not be supported and the application either determined or deferred pending the review of the Lower Shoalhaven River Flood Risk Management Plan, Shoalhaven Local Environmental Plan 2014 and Chapter G9 of Shoalhaven Development Control Plan 2014 as required by Council’s resolution of 14 March 2017.

Development Committee – Monday 05 June 2017

Page 72

DE17.43 Development Application – 98 Canberra Crescent, Burrill Lake – Lot 149 DP 15648

DA. No: DA17/1350/4

HPERM Ref: D17/144057

Group: Planning Environment & Development Group

Section: Ulladulla Service Centre

Attachments: 1. Revised Statement of Environmental Effects (under separate cover) ⇨

2. 3D Elevations, Colours and Finishes ⇩

3. Clause 4.6 Exception to Development Standard ⇩

4. Site Photo’s for 98 Canberra Cr, BURRILL LAKE - Lot 149 DP 15648 (under separate cover) ⇨

Description of Development: Two Storey Pole House

Owner: Ellliot Marshall

Applicant: True North design

Notification Dates: 11 – 25 April 2017

No. of Submissions: One (1) in objection

Nil in support

Purpose / Reason for consideration by Council

This application is reported to the Committee due to a variation to the 8.5m maximun building height set by clause 4.3 of Shoalhaven LEP 2014. The variation is required to be determined by the Development Committee due to the variation exceeding 10%.

Recommendation (Item to be determined under delegated authority)

That the Development Committee

1. Support the variation to maximum building height of 8.5m set by clause 4.3 of Shoalhaven LEP 2014 for two storey pole home at 98 Canberra Crescent, Burrill Lake to a maximum building height of 11.15m;

2. Refer the application back to staff for determination.

Options

1. Support the variation.

Implications: The development can proceed as proposed, subject to meeting the matters for consideration under section 79c of the Environmental Planning and Assessment Act 1979 and subject to conditions that may be imposed arising from those considerations.

2. Variation not supported but applicant invited to submit revised plans

Implications: The current variations are not supported but the applicant is given feedback on changes to reduce the requested variations. Therefore, revised plans may be resubmitted for determination by Development Committee or by Senior Council Officers if the revised proposal is within the Delegation Guidelines.

Location Maps

Background

Proposed Development

The proposal is for the construction of a 220m², two storey pole frame home, including a 20 m² single carport with low pitched skillion roof. The dwelling contains 4 bedrooms, 2½ bathrooms, office, combined living/dinning and lower level rumpus room. The roof is a low pitched gable design with a series of clerestory windows pitched to the North. The exterior façade of the dwelling is a combination of bare stone panel to the lower level and colorbond cladding above.

The development begins with zero setback from the Northern boundary (Canberra Crescent) for carport before projecting 2.5m, Southwest, for a 2m wide deck attached to the dwelling. The dwelling has a 4.5m setback from the street and projects a total of 23m from front boundary. Access to street is via stair case running parallel to Northwestern side of Carport. The lower level of the residence is underslung 2.7m below the FFL of upper level and is acessed from internal staircase only.

Both the upper and lower levels have unroofed, 3m wide, South facing decks cantilevring 1.5m from the pole structure. The Western elevation and section below demonstrate layout of development and provide details of levels:

Subject Land

The land is a 442.62 m² vacant Lot is within an existing residential subdivsion created in 1927. The allotment frontage to Canberra Crescent is 12.190m and has a depth of 36.575m.

The land is zoned R2 - Low Density Residential and is subject to a 8.5m maximum building height under clause 4.3 of the LEP.

Site & Context

The site is steep sloping with 10 metres of fall over the first 20 meters from the road frontage. This section of the land is where the proposed building is located and equates to an approximate gradient of 27°. The majority of allotments on the south side of Canberra Crescent are steep sloping sites which can be seen in the mapping overlay below showing contours at 1m intervals. There are a number of similar pole frame designs along Canberra Crescent due to the geographical and geological challenges of the sites.

The property is identified as "sensitive area" on Shoalhaven LEP 2014 - Natural Resources Sensitivity overlay and is affected by Clause 7.7 Landslide risk and other land degradation. Clause 7.7 applies to land comprising steep slopes and susceptible to other forms of land degradation. A geotechnical report has been included within the application and recommendations integrated into the design.

The alotment is vegetated and is known to contain vegetation that comprises an Endangered Ecological Community (Bangalay Sand Forest of the South East Sydney Basin Bioregion, Schedule 1 NSW TSC Act 1997) and potential habitat for hollow dependant threatened fauna (hollow bearing trees). It is acknowledged that the site is within existing residential area however these matters will be addressed to fulfil Council’s obligations under S5A of the EP&A Act 1979. An Assessment of Significance has been requested to include recommendations for the mitigation of impacts to the EEC and any threatened fauna detected. Measures will be incorporated as conditions of consent for the development.

The LEP Biodiversity Zone applied to this alotment starts approximatley 9.2m from the street frontage. Site inspections have been completed and the two trees to be removed for the development are outside of the Biodiversity Zone.

History

The subject lot was declared 7 June 1927 (B636416). Its description is Lot 149 DP 15648. The lot was purchased current owner in May 2017. This is the first Development Application lodged for the allotment.

Issues

Clause 4.3 Shoalhaven LEP 2014

This clause of the LEP imposes a 8.5m maximum building height on the subject land. The application proposes a building with a maximum height of 11.15m. The elements of the building that exceed the 8.5m height limit are for a section of the upper level walls, roof and cantilevered balcony projecting South. These elements are included within red triangle on picture below: D17/157896 provided further information on spot heights.

Applicant’s Submission

The applicant’s Clause 4.6 variation statement and supporting information is included as Attachment 1 in this report. This document satisfactorily addresses the thirteen matters required to vary a development standard and includes mapping where relevant. An extract from this document is included below:

The applicants supporting statement on how the proposal is consistent with the objectives of Clause 4.3 of the development standard is below:

Discussion

The applicant needs to demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and that there are sufficient environmental planning grounds to justify contravening the development standard. Council cannot grant consent for such a development unless it is satisfied that the applicant has adequately addressed the above matters and that the proposal will be in the public interest because it is consistent with the objectives of both the development standard and the zone in which the development is proposed.

The objectives of the development standard is:

(a) to ensure that buildings are compatible with the height, bulk and scale of the existing and desired future character of a locality,

(b) to minimise visual impact, disruption of views, loss of privacy and loss of solar access to existing development,

(c) to ensure that the height of buildings on or in the vicinity of a heritage item or within a heritage conservation area respect heritage significance.

It is considered that the development is consistent with the objectives of the development standard, as described below:

· The height of the proposal is one meter lower than neighboring dwelling to the West (No.94), will sit comfortably with the existing character of the locality and is not incompatible with surrounding development;

· The bulk and scale of the development has been reduced through the cantilevering of building elements, clever articulation and selection of differing cladding systems;

· The visual impact from the development has been minimised through the selection of earth toned colour palette to help the home blend into terrain;

· Existing vegetation is to remain where possible. Additional planting of will assist in the screening of the elevated platform from streets below and neighboring allotments;

· Highly valued views have been retained due to the gable roof of the proposal measuring only .8m above the FFL of No.94 as shown in the picture below;

· There is no impact on views from houses to north of the street as the roof of the carport and house are less than 2.1m above top of street gutter;

· The southern decks and balustrade will act as horizontal screen to disrupt direct views into properties below;

· Solar diagrams demonstrate their will be no loss of solar access to neighboring allotments to the south.

Planning Assessment

The DA has will be assessed under s79C of the Environmental Planning and Assessment Act 1979, the proposal does include a proposed variation to the front building setback which will be inlcuded in the final assessment, however, this part of the structure does not exceed the maximum building height and is consistent with existing development along this side of Canberra Cresent.

Policy Implications

There are no specific policy implications that arise from this matter. The variation procedure provided for by clause 4.6 of Shoalhaven LEP 2014 provides a framework for variation of standards in a manner which does not undermine the policy aspects of the development standard

Consultation and Community Engagement:

One (1) submission was received in relation to Council’s notification of the development. This was in the nature of an objection to the development. The notification was made in accordance with Council’s Community Consultation Policy with letters being sent within a 25m buffer of the site. The notification was for a 14 day period.

Key issues raised as a result of the notification are provided below.

Rear set back (5.1.3 Setback and Building Lines)

Concern was raised in relation to the setback of the building from the rear boundary, the building is set back 15m from rear boundary and is consistent with Acceptable Solution A3.2 and Table 1 within Chapter G12 of DCP which requires 0.9m.

Solar Access (5.3.6 Solar Access)

Concerns were raised about solar access, however, shadow diagrams submitted which meet the requirements. Also the existing vegetation provides significnt shading to the properties along the northern side of Commonwealth Ave.

Financial Implications:

If the application is appealed it will result in costs to Council of defending the appeal. However, this prospect, which in most cases is reasonably remote, is not a matter that Council is required or entitled to consider in determining a development appllcation and accordingly it should not be given any weight in Council’s decision.

Legal Implications

If the application is refused, or if the applicant is dissatisfied with Council’s determination, or if the applicant can appeal on the basis of a deemed refusal because of Council’s delay in determining the application, the applicant is entitled to appeal to the Land and Environment Court.

Summary and Conclusion

The building height variation is supported for the following reasons:

· The site is steep and therefore provides challenges in designing a building of reasonable floor space, amenity and utility while minimising the number of levels;

· Houses in the street of a similar height were approved under DCP 91 prior to maximum building height of 8.5m being trasnferred to a development standard in SLEP 2014;

· The proposal is consistent with the height, bulk and scale of the existing and desired future character of the locality;

· The proposal has minimal visual impact, disruption of views, loss of privacy and loss of solar access to existing development;

· The applicant has adequately addressed the matters set out in clause 4.6 of Shoalhaven LEP 2014;

· The proposal will be in the public interest because it is consistent with the objectives of both the development standard and those of the R2 Low Density Residential zone.

Development Committee – Monday 05 June 2017

Page 94

Local Government Amendment (governance & planning) act 2016

Chapter 3, Section 8A Guiding principles for councils

(1) Exercise of functions generally

The following general principles apply to the exercise of functions by councils:

(a) Councils should provide strong and effective representation, leadership, planning and decision-making.

(b) Councils should carry out functions in a way that provides the best possible value for residents and ratepayers.

(c) Councils should plan strategically, using the integrated planning and reporting framework, for the provision of effective and efficient services and regulation to meet the diverse needs of the local community.

(d) Councils should apply the integrated planning and reporting framework in carrying out their functions so as to achieve desired outcomes and continuous improvements.

(e) Councils should work co-operatively with other councils and the State government to achieve desired outcomes for the local community.

(f) Councils should manage lands and other assets so that current and future local community needs can be met in an affordable way.

(g) Councils should work with others to secure appropriate services for local community needs.

(h) Councils should act fairly, ethically and without bias in the interests of the local community.

(i) Councils should be responsible employers and provide a consultative and supportive working environment for staff.

(2) Decision-making

The following principles apply to decision-making by councils (subject to any other applicable law):

(a) Councils should recognise diverse local community needs and interests.

(b) Councils should consider social justice principles.

(d) Councils should consider the principles of ecologically sustainable development.

(e) Council decision-making should be transparent and decision-makers are to be accountable for decisions and omissions.

(3) Community participation

Councils should actively engage with their local communities, through the use of the integrated planning and reporting framework and other measures.

Chapter 3, Section 8B Principles of sound financial management

The following principles of sound financial management apply to councils:

(a) Council spending should be responsible and sustainable, aligning general revenue and expenses.

(b) Councils should invest in responsible and sustainable infrastructure for the benefit of the local community.

(c) Councils should have effective financial and asset management, including sound policies and processes for the following:

(i) performance management and reporting,

(ii) asset maintenance and enhancement,

(iii) funding decisions,

(iv) risk management practices.

(d) Councils should have regard to achieving intergenerational equity, including ensuring the following:

(i) policy decisions are made after considering their financial effects on future generations,

(ii) the current generation funds the cost of its services

Chapter 3, 8C Integrated planning and reporting principles that apply to councils

The following principles for strategic planning apply to the development of the integrated planning and reporting framework by councils:

(a) Councils should identify and prioritise key local community needs and aspirations and consider regional priorities.

(b) Councils should identify strategic goals to meet those needs and aspirations.

(d) Councils should ensure that the strategic goals and activities to work towards them may be achieved within council resources.

(e) Councils should regularly review and evaluate progress towards achieving strategic goals.

(f) Councils should maintain an integrated approach to planning, delivering, monitoring and reporting on strategic goals.

(g) Councils should collaborate with others to maximise achievement of strategic goals.

(h) Councils should manage risks to the local community or area or to the council effectively and proactively.

(i) Councils should make appropriate evidence-based adaptations to meet changing needs and circumstances.